Thursday, January 29, 2009

On Friday night a film screening of "The Exonerated" will precede a question and answer session from a man on which one of the movie's characters was based: Kerry Max Cook, an innocent man convicted of capital murder in 1977. After spending 22 years on death row, DNA testing exonerated him from the crime.

Rick Halperin, director of the SMU Human Rights Education Program, hopes that the 2 events - both Holbrook's photographs and Cook's presentation - will "rehumanize" inmates to the public eye.

"Cook spent as much time on death row as the average college student has been alive," Halperin said.

Today Cook is an anti-death penalty activist and author of his memoir "Chasing Justice," of which he will be signing copies and selling for $15 during the film screening. Senior Savannah Engel, Human Rights Chairman for Students for a Better Society, said that Cook's case is one ofhundreds.

"120 people so far have been declared innocent through DNA exoneration and there are many more in prison," she said. "The issue we're looking at is our court system."

Halperin said that Cook's legal case might be "the worst case of prosecutorial misconduct in U.S. history." The human rights advocate and SMU professor will also be a panelist at Thursday's "Truth" discussion, where he hopes to educate the audience about injustices in the legal system and mistreatment of inmates.

The film "The Exonerated" and Cook's book signing is a part of the SMU Leadership and Community Involvement Social Justice Film Screening and Central University Libraries. It will take place Friday from 6:30 p.m. - 9:30 p.m. in the Hughes-Trigg Commons.

The following is a short addendum sent to me by Dr. Glenn Larkin, one of the pathologists quoted in the Larry Swearingen article I post a few days ago.

A short addendum to this article:--- Larry Swearingen

Even the circumstantial evidence is raunchy, as well as some of the physical evidence.

1) The pubic hair found in the vaginal area:]

This strongly suggests that intra-vaginal intercourse took place with the man who dropped the hair. It also means that this event --- consensual or not --- occurred AFT$R Trotter had her last shower or bath, presumably that morning.

Or if Trotter was alive for days after 8 December, it merely states that she was killed AFTER her last intercourse.

Trotter had a vaginal or cervical biopsy performed shortly before her death, and an area of red discoloration was misdiagnosed by Dr Carter as traumatic injury, implying rape. The alleged trauma was iatrogenic --- or surgically caused.

2) The "blood" found under one of Trotter's fingernails: This blood was tested for DNA and was not --- repeat not--- matched to Swearingen's DNA. The state p[roposed two equally preposterous theories;

2.1) One of the detectives at the scene cut himself shaving that morning, and the drop fell of his face, and flew UNDER Trotter's finger nail. For one thing, blood from} a shaving "nick" would have dried, unless the detective had hemophilia or some other coagulopathy. For another, how did that blood get UNDER the finger nail? There is an old medical aphorism that states, "When you hear hoof beats, think of horses and not zebras (Common things are common; rare things are rare.).

2.2) The second theory, equally ludicrous, is that the blood cames from air dispersion through the morgue's air conditioner system. Curious, I am not aware of this unique source ever happening before, and I wounder if any other cadavers had been contaminated this way, especially the same day (January 3, 1999). How many autopsies ere performed at the same time as Trotters. Note that Trotter's autopsy was performed as the second of 1999, starting at 2:15 pm, with a gaggle of witnesses; that presupposes that either one or no autopsies were performed that day, and if one was performed, it could have been either before this autopsy, at the the same time, or after this one, which makes the air route of contamination most unlikely. The defense never questioned this probability because it did not come up at trial.

3) The pantyhose fragments:

3.1 As previously stated, a segment of pantyhose was found around Trotter's neck, damp, discolored, and knotted. It also was no doubt moved by the rodents that feasted on Trotter's larynx. This noose was removed in the proper manner, and photographed, but not measured properly (diameter has no meaning here).

3.2 A second fragment, containing the pelvic portion, and the attached leg portion was found in a dumpster at the traier park where Swearingen lived, and shared by the other tenants. Note that Swearingen's trailer was searched several times and the pantyhose fragment was not found . If the dumpster was emptied between 8 December and 11 December, it would not contain the pantyhose fragment . If the pantyhose was found in the dumpster after the last pickup, Swearingen could not have placed it in the dumpster. This evidence therefo0re has a murky provenance

3.2 It is not stated how the two fragments were "matched". If done my eye-ball, this is certainly subject to challenge --- being manipulated by rodents distorted the cut edge, and the moisture affected the elasticity, to cite a few problems, even if the class characteristic "matched". The class characteristics are not sufficient evidence for court.

4. "The last person to see her alive":

4. 1 Again, this is specious; while Swearingen did meet Trotter on campus, they were and were dating off and on for weeks or months. Trotter relied on Swearingen to protect her from a probable former playmate, or playmate to be who was harassing and threatening her, as stated by several of her co-workers.

4.2 Since they were dating, it is no surprise that some of her head hairs were found in Swearingen's truck. It cannot be determined WHEN those hairs got there. Likewise, there is evidence to support that Trotter did not visit Swearingen's trailer the day of her disappearance. He was entering and leaving alone, and Trotter was not with him, unless he sprinkled her with whiffle dust.

5. The last preposterous theory the state proposed is that Swearingen killed Trotter on December 8th, and stuck her body in a cooler. Then a friend dropped her in the forest while he was in the county jail.

5.1 There is no evidence to support this wild assumption on several accounts..

Freezing will stop decomposition completely, but when the body is thawed, deposition proceeds at an accelerated rate. This is because the ice crystals rupture the cell membranes, allowing all the cell juice to mix when thawed.

A cooled but not frozen body behaves like chopped meat; put a pound of raw hamburger in your refrigerator, and forget it for two weeks; your nose will then remind you. This scenario was used in a detective novel "Silent Witness" Robert Parker, but does not work in the real world.

There is still other evidence of a non-medico-legal nature better left to others; I believe that General Gregg Abbott Esq is putting his foot deeper into his mouth every time he speaks; he conveniently forgets that Swearingen only has to proffer PLAUSIBLE evidence of actual innocence to get a hearing; if what Swearingen has demonstrated in not plausible, nothing ever is. Mr Rytting has stated, "Swearingen is guilty by imagination."

I maintain that anything less than a pardon of innocence for Swearingen is a moral obscenity.

Tuesday, January 27, 2009

The Death Penalty Clinic opened its doors in August 2001. The clinic's mission is to offer a program that helps students develop outstanding legal skills and to serve clients facing capital punishment. These complex cases teach students about law, courts, and the justice system, and prepare them to enter the profession with a commitment to fundamental rights. Students work under the direct supervision of the clinic's faculty, paralegal, and experienced capital defense investigators.

In response to a critical shortage of qualified and adequately funded counsel for individuals under death sentence, the focus of the clinic's work is representing men and women in capital post-conviction proceedings in several states, including Alabama and California. The Death Penalty Clinic also takes on other work, including amicus curiae briefs, petitions for writs of certiorari, clemency petitions, and pretrial motions in capital cases. The clinic also has been co-counsel with law firms engaged in pro bono representation in death penalty cases.

The seminar that accompanies the clinical work provides a theoretical foundation for the students. Topics include relevant substantive capital punishment law; habeas corpus practice and procedure; and the fundamentals of death penalty litigation, including fact investigation, interview techniques, and the development of mitigation evidence.

Because of the complexity of death penalty litigation, students are required to enroll in the clinic for a year. Students work as part of legal teams assigned to the clinic's clients. In regular sessions with the faculty and in the companion seminar, students learn how to conduct a capital case investigation, work with clients and interview witnesses, consult with forensic experts, draft pleadings, and prepare for hearings.

The Austin American-Statesman has a great editorial today about the Texas Court of Criminal Appeals and Gov. Rick Perry's failure and carelessness to prevent execution of a possibly innocent death-row inmate.

Once again, a federal court has had to intervene to prevent Texas from executing a death row inmate whose conviction is in doubt. The 5th U.S. Circuit Court of Appeals on Monday issued a reprieve to Larry Swearingen, whose execution by lethal injection was scheduled for today.

And once again, Texas courts and officials did nothing to prevent a possible miscarriage of ultimate justice. The Texas Court of Criminal Appeals had denied Swearingen's petition to hear new information from pathologists who reviewed the case. Nor did Gov. Rick Perry issue a reprieve. And Texas Attorney General Abbott opposed Swearingen's appeal to the 5th Circuit, which ruled that Swearingen's petition could be heard by a federal district court.

Expert scientific analysis strongly indicates Swearingen might not have committed the 1998 murder of college student Melissa Trotter, 19. Based on a report by four pathologists, Swearingen's attorney appealed to the state criminal appeals court, the governor's office, the federal appeals court and the U.S. Supreme Court asking for a stay of execution to review the information.

One of those pathologists with a new interpretation of the case is former Harris County Chief Medical Examiner Joye Carter, who performed the autopsy on the victim. Carter says her original estimate of the time of death was wrong, as do several other professionals.

This case is about timing. Trotter was last seen leaving the Montgomery County Community College campus in Conroe with Swearingen on Dec. 8, 1998. Her body was found in Sam Houston National Forest near Conroe on Jan. 2, 1999. She had been strangled, and a portion of her panty hose was found around her neck.

Swearingen was a good bet for the crime. He was twice accused of rape and had been seen with Trotter the day she disappeared. There was other circumstantial evidence implicating Swearingen, too. But if he had killed Trotter and left her in the national forest on Dec. 8 or soon after, the body would have been badly decomposed. Instead it was quite well preserved.

Pathologists, including Carter, say the body could not have been in the forest more than 14 days and likely was there as few as four days before it was discovered. If true, that means Swearingen could not have killed Trotter and left her body in the woods because he had been in jail since Dec. 11 on outstanding traffic warrants.

The science behind the claim that Trotter's body had not been in the forest for more than two weeks is strong. It is based on proven rates of organ decomposition, on insect infestation and other well-tested factors that pathologists use to determine times of death.

This expert analysis presented a strong argument to delay Swearingen's execution until the information can be evaluated. Had the jury heard these scientific facts during Swearingen's trial, it might have rendered a verdict of not guilty.

Despite that, neither the state appeals court, the attorney general nor the governor did anything to prevent the execution of a possibly innocent man. The lack of interest in fairness and justice by the Texas Court of Criminal Appeals in capital cases continues to baffle, frustrate and infuriate.

Steve Mills of the Chicago Tribune is reporting that the state of Texas is hiring a Maryland arson expert to examine the evidence in the case of Cameron Todd Willingham.

In 2004, four fire experts told the Chicago Tribune that the fire that had sent Cameron Todd Willingham to Death Row and later to his execution in Texas might have been an accident rather than a crime.

Nearly two years later, a panel of four other experts who reviewed the case for the Innocence Project came to a similar conclusion, saying the State of Texas had convicted and executed Willingham based on forensic evidence that no longer was considered scientifically valid.

Now what may be the final verdict on the fire, and on Willingham's execution, will be delivered by a Maryland expert, who will examine the evidence in the first state-sanctioned inquiry into a Texas execution. Fire scientist Craig Beyler has been asked by the Texas Forensic Science Commission to conduct an independent review of the case's forensic evidence.

"He appears to be one of the pre-eminent people in the fire and arson investigation field," Samuel Bassett, an Austin attorney and commission member, said of Beyler.

Barry Scheck of the Innocence Project, a non-profit organization responsible for scores of DNA exonerations, called the hiring of Beyler an "encouraging sign" and said he hoped Beyler would be able to "get to the bottom" of the case that sent Willingham to a lethal injection.

"It's essential that this matter is resolved for the sake of those who have been wrongly convicted by unreliable arson evidence, as well as those under investigation in new arson cases," said Scheck, the Innocence Project's co-director.

The Innocence Project filed the complaint that prompted the commission's inquiry. Willingham was executed by lethal injection in 2004 for setting the December 1991 fire that killed his three young daughters in the small Texas town of Corsicana. He maintained his innocence at trial, through his years on Death Row and before he was executed.

The Tribune investigated the case in late 2004. As part of its investigation, the paper asked four fire experts from across the country to review the forensic evidence; the four concluded the indicators of arson that state and local officials cited in their case against Willingham at his 1992 trial had been debunked by universally recognized advances in fire science.

The experts said it was possible the fire at the Willingham home was an accident, as Willingham had claimed.

The Innocence Project's experts, who performed the 2006 review at no cost, came to the same conclusion. In one of its harshest criticisms of the original investigation, the panel said the fire marshal's testimony at Willingham's trial about the indicators of arson he said he found "means absolutely nothing."

The Forensic Science Commission was created in 2005 to investigate allegations of forensic error and misconduct in the country's busiest death-penalty state. The Willingham case is its first capital case.

Bassett said he hoped Beyler would be able to complete his review by early April. Beyler will write a report and may make recommendations to the commission.

It is not clear whether Beyler would conclude whether Willingham was innocent. Even if he finds that the science used at the time was flawed, as the other experts have, he may not take the next step and say Texas was wrong to execute Willingham, though that would be the clear implication.

"If [Beyler's report] is critical of the arson testimony," said Bassett, "then theoretically it's possible that could be the basis for a broader conclusion about the original conviction."

The prosecution's evidence included a jailhouse informant named Johnny Webb who testified Willingham, while both were behind bars, confided that he had set the fire. Jailhouse informants, however, are considered by the legal system as among the least credible witnesses. Such testimony has played a role in numerous prosecutions in which inmates were later exonerated.

Navarro County District Atty. R. Lowell Thompson, who was not in office when Willingham was tried or executed, said he would cooperate with any investigation but had not been contacted by the Forensic Science Commission. He has not reviewed the case.

Four forensic pathologists agree that Larry Swearingen, set to be executed Tuesday, could not have committed the 1998 murder that sent him to death row.

The four include the medical examiner whose testimony helped secure Swearingen's guilty verdict. That medical examiner now says college student Melissa Trotter's curiously preserved body could not have lain in the East Texas woods for more than 14 days — and probably was there for a much shorter time.

The results mean Swearingen was in jail when the 19-year-old's body was left behind, the pathologists say.

"It's just scientifically impossible for him to have killed the girl and thrown her into the woods," said James Rytting, Swearingen's appellate lawyer. "It's guilt by imagination."

Prosecutors disagree, saying compelling evidence ties Swearingen to the crime, including a match between the panty hose leg found around Trotter's neck and the stocking remnant found in a trash dump next to Swearingen's mobile home. Also, hair and fibers show Trotter had been in Swearingen's truck and mobile home in Willis, about 40 miles north of Houston.

But in court briefs seeking to keep Swearingen's execution on track, prosecutors do not attack the conclusions by the four pathologists beyond labeling them "opinion evidence based on experts' second-hand review of others' work and photographs."

One of those pathologists, however, did Trotter's autopsy.

In her original report, Dr. Joye Carter determined that Trotter's strangled body had lain in the Sam Houston National Forest outside Conroe for 25 days — coinciding exactly with the date of Trotter's disappearance from Montgomery County Community College, Dec. 8, 1998. Witnesses said Trotter left the campus library that day with Swearingen, whom she met two days earlier.

The timing was important because Swearingen had been in jail since Dec. 11 on outstanding traffic warrants.

But faced with conclusions from other pathologists that her 25-day time of death defied scientific analysis and common sense, Carter recanted her findings in a 2007 affidavit. "Ms. Trotter's body was left in the woods within two weeks of the date of discovery" on Jan. 2, 1999, she wrote.

Reassessment of Trotter's autopsy began late in Swearingen's appeals process when a defense pathologist noticed that Carter found an intact spleen and pancreas.

Both organs liquefy quickly after death, prompting a more thorough review:

Red blood cells break down within hours, and nuclei in heart cells break down within days, White said.

Also, levels of bacteria indicated the body had not been frozen or preserved, he said.

White's conclusion: Trotter had been dead for two or three days before her discovery.

• Trotter's mucosa — fragile tissue in the stomach and intestines that quickly disintegrates after death — was intact, noted Dr. Glenn Larkin, a North Carolina pathologist.

The condition of the mucosa indicates with "medical certainty" that Trotter had been in the forest for less than 10 days and more likely three or four days, Larkin concluded.

• Trotter weighed 109 pounds at a doctor's visit shortly before she disappeared, but her body weighed 105 pounds, a 4 percent decline. Larkin concluded that a body will lose up to 90 percent of its weight in less than 25 days under temperatures endured by Trotter's body: average highs of 62 and lows of around 40.

• Unlike a body left outside for 25 days, Trotter's showed no sign of bloating or perforated intestines. Her clothes were unsoiled and slipped easily from her body during the autopsy. There was limited scavenging by animals in a forest inhabited by feral pigs, vultures and raccoons.

"The following forensic conclusion is therefore not reasonably debatable amongst competent forensic pathologists: Without question, Mr. Swearingen was not the person who left Ms. Trotter's body in the Sam Houston National Forest," Larkin said in an affidavit.

Thus far, only the Texas Court of Criminal Appeals has seen the opinions from the four forensic pathologists.

The state's highest criminal court, however, did not rule or comment on the information. Instead, the court dismissed Swearingen's petition for violating state laws that limit death row inmates to one petition for a writ of habeas corpus unless lawyers uncover information that was not available when the first appeal was filed.

The appeals court has yet to rule on a stay of execution motion that repeats the forensic conclusions.

The opinions from the forensic pathologists also were included in a plea to Gov. Rick Perry to issue a 30-day execution reprieve.

Swearingen also has two federal petitions pending based on the forensic information. He is asking the 5th U.S. Circuit Court of Appeals for permission to bring the findings to a U.S. District Court for review, and he is asking the U.S. Supreme Court to review the case.

Texas Attorney General Greg Abbott has opposed both requests, saying Swearingen has not met federal requirements to pursue an innocence claim and is, in fact, not innocent.

Swearingen has presented no new DNA or indisputable evidence undermining his conviction, only expert opinion that could be challenged under cross-examination if presented at trial, Abbott said in briefs.

In addition, Abbott said, the prosecution's case against Swearingen was convincing: He was the last person seen with Trotter, whose autopsied stomach contained potatoes, which she ate for lunch the day she disappeared. The panty hose link Swearingen to the crime, and Swearingen wrote a letter from jail — in Spanish to divert police attention to another man — that presented a plausible narrative for the killing.

Swearingen's lawyer, joined by the Innocence Project in New York, says he believes he has met the legal definition for an innocence claim: that it is unlikely a reasonable juror would convict him in light of the new evidence.

"Someone else had that girl's body, dead or alive, and threw her in the forest. And that someone wasn't Larry," Rytting said.

Saturday, January 24, 2009

Larry Ray Swearingen has lived on Texas death row for eight years, convicted of the rape-murder of a Montgomery County coed in 1998. He is scheduled for execution by lethal injection in Huntsville next Tuesday, despite the fact that a growing body of evidence indicates he could not have strangled 19-year-old Melissa Trotter and dumped her body in Sam Houston National Forest.

With the inmate facing an irreversible sentence — capital punishment — it is imperative that Texas Gov. Rick Perry stay the execution to prevent the death of a possibly innocent man.

stantial evidence indicated Swearingen, a convicted rapist, was a logical suspect, forensic facts not presented at his trial point elsewhere. Trotter’s body was discovered 10 years ago on Jan. 2, nearly a month after her disappearance from the Montgomery College campus in Conroe.

However, Swearingen was jailed on traffic warrants three days after the woman went missing. Although prosecutors theorized that Trotter was killed and her body dumped in the forest the day of her disappearance, the corpse was amazingly well preserved when discovered. Six physicians and forensic scientists who reviewed the evidence concluded that the victim died well after Swearingen’s arrest.

Former Harris County Chief Medical Examiner Joye Carter, who testified against Swearingen in his trial, reexamined the physical evidence and has concluded that Trotter’s death occurred at least a week after Swearingen was taken into custody.

One expert, using a technique familiar to viewers of the CSI TV series, confirmed that finding by dating the development of insect larvae in the victim’s body.

Other exculpatory evidence included blood samples found under Trotter’s fingernails and a pubic hair recovered from a vaginal swab that came from someone other than Swearingen.

The strongest evidence linking the inmate to the murder was the fact he was seen with Trotter on campus the day she disappeared, and a torn stocking matching a piece used to strangle her was found at the man’s trailer. Oddly, the hose turned up after the trailer was twice searched by Montgomery County deputies. Lawmen did not disclose during the trial that Trotter had received phone threats from another man.

The Texas Court of Criminal Appeals correctly stayed Swearingen’s execution last year on the basis of the new evidence. It inexplicably later denied his appeal for a new trial without addressing the seeming impossibility of his involvement in the woman’s killing.

The inmate’s attorney, James Rytting, is currently working on a new appeal with the assistance of the New York-based Innocence Project. They are seeking DNA testing of the pantyhose and blood samples. Rytting told the Chronicle’s Lisa Falkenberg that despite the contradictions, prosecutors continue to spin far-fetched theories, such as the possibility that Swearingen had refrigerated Trotter’s body and then had an unknown accomplice dispose of it while he was jailed.

Dr. Glenn Larkin, a retired forensic pathologist who reviewed the case, told Texas Monthly that “no rational and intellectually honest person can look at the evidence and conclude Larry Swearingen is guilty of this horrible crime.”

He may not be a saint, but Swearingen does not deserve to die for someone else’s crime.

Governor Perry should halt the execution to allow more testing that may exonerate the convict and point toward an at-large killer.

Someone killed Melissa Trotter and dumped her body in the Sam Houston National Forest. But according to six forensic experts, that someone was not Larry Swearingen. Michael Hall of Texas Monthly reports:

Innocent men in prison often have two things in common. They stubbornly refuse to plead guilty, even if it means a reduced sentence or freedom. And they never quit trying to prove their innocence, whether it’s by writing letters to lawyers and journalists, filing writs on their own, or just camping out in the prison library studying law books or anything else that could help their cases. The wrongly convicted never give in, and they never give up.

Larry Swearingen, an eight-year resident of Texas’s death row, is almost certainly a member of this unhappy group. From the beginning, when he was arrested in December 1998 for murdering Melissa Trotter in rural Montgomery County, just north of Houston, he has insisted he didn’t do it. He never asked for any kind of a plea deal, once saying, “I’m not going to plead guilty to something I didn’t do.” He took the stand at his trial and testified that he didn’t kill Trotter. Ever since, he has worked diligently from his cell at the Polunsky Unit to prove his innocence—filing writs to the court system, writing letters to journalists, even poring over climatological charts to prove his case.

But there are other reasons besides pride and perseverance to believe that Swearingen didn’t kill Trotter. Six different physicians and scientists—forensic pathologists and entomologists—say there’s almost no way Swearingen could have done it. One of those doctors was instrumental in convicting Swearingen back in 2000 but has now changed her mind after seeing all of the evidence. Dr. Glenn Larkin, a retired forensic pathologist in Charlotte, North Carolina, says, “As a forensic scientist since 1973, I always kept an objective stance when called to testify; however, there comes a point when as a human, and as a Christian, there is a mandate to speak in the interest of justice. This is a moral issue now; no rational and intellectually honest person can look at the evidence and conclude Larry Swearingen is guilty of this horrible crime.”

And it is a moral issue with real urgency. Swearingen just got an execution date of January 27. His lawyers are frantically trying to get a stay of execution as well as DNA testing. If they don’t succeed, it is entirely possible, even likely, that the State of Texas will execute an innocent man in two and a half weeks.

A Shaky Case

Back in 2000, the prosecutors of Montgomery County used mostly circumstantial evidence, some of it remarkably weak, to convict Swearingen. Trotter was a nineteen-year-old student at Montgomery College in Conroe when she disappeared on December 8, 1998. An extensive search was organized, and her body wasn’t discovered until January 2 in the Sam Houston National Forest by a couple of hunters—in an area that had been already searched three times. She had been strangled with one leg of a set of panty hose. Around her neck and face there was some decomposition from maggots as well as evidence of rodent scavenging. She was clothed but her shirt had been bunched up around her neck, and though her torso was bare, it showed no evidence of having been scavenged by the wild pigs, crows, raccoons, or vultures that live in the forest. Her corpse was not bloated, and police reported no foul smell. In fact, the hunters had initially thought she was a mannequin. The body appeared to have been in its final resting place for only a short period of time.

Swearingen, an ex-con who was working as an electrician, had met Trotter on December 6 and asked her out on a date. She stood him up the next day, but on December 8 they rendezvoused on campus. That same day she disappeared, making Swearingen one of the last people to see her alive. Three days later, he was arrested for outstanding traffic warrants and put in jail, where he remained after becoming a suspect in Trotter’s disappearance. When her body was found, Swearingen had already been in jail for three weeks.

Though no one saw Trotter leave the campus with Swearingen, the state was able to stitch together a tenuous narrative that had Swearingen kidnapping her in his truck, taking her to his trailer, raping her, killing her, and dumping her in the forest. (In order to get the death penalty, prosecutors had to prove murder in tandem with another felony, such as kidnapping or rape.) The motive? Prosecutors brought forward testimony from construction worker pals of Swearingen’s who said he had been furious at being stood up. As for proof about the kidnapping, there were witnesses who saw the two together on campus earlier that day, and there were fibers found on her jacket that “appeared to be” from Swearingen’s jacket and other fibers found on her and her clothes that were “similar to” carpet fibers from his trailer and truck seat.

Swearingen made two cell phone calls that afternoon, and because the calls were routed through a tower near the crime scene, the prosecution said that proved he had dumped the body there. As for proof of rape, Harris County chief medical examiner Joye Carter, who did the autopsy, found no evidence of violent penetration of Trotter, but she did say there was some discoloration of the vaginal wall. Though this could have come from normal intercourse, the prosecution used this as evidence that Swearingen had raped Trotter. When the Court of Criminal Appeals later took up Swearingen’s appeal, it admitted, even as it affirmed his guilt, “The forensic evidence is inconclusive.”

The most damning piece of evidence against Swearingen was another leg of panty hose found in the trash outside his trailer four days after Trotter’s body was located. Even this was not as clear-cut as it should have been. When the fabric was found, the trailer had already been fruitlessly searched twice by half a dozen deputies who turned up nothing. It was matched to the piece around Trotter’s neck by a DPS criminologist. Swearingen’s appellate attorney James Rytting wrote in an appeal that the pantyhose matching “was not based on scientific or forensic principles. The pantyhose material . . . can be easily stretched or distorted, so ‘matching’ may easily be the artifact of the examiner’s manipulations, whether intentional or unconscious.”

The case wasn’t entirely circumstantial. The state also called medical examiner Carter, who testified that she thought Trotter had most likely been killed on or about the day she disappeared. She based her opinion on the body’s external condition—the decomposition and maggot activity around the head and neck. She wasn’t asked—and didn’t tell—about the condition of the body’s internal organs, which were remarkably intact for a person who had supposedly been dead for so long.

The defense had two important things on its side that should have given the jury pause. Most critically, blood was found underneath one of Trotter’s fingernails and DNA analysis proved it was not Swearingen’s. Also, a pubic hair found in a vaginal swab was found not to be his. But the defense pathologist didn’t question why Trotter’s body was in such good shape, nor did the expert question the prosecution’s theory that she had died on or around December 8. The jury found Swearingen guilty and gave him the death penalty in June 2000.

The Science of Death

It wasn’t until Swearingen was given his first execution date, January 24, 2007, that he began to get medical science on his side. First came the bug guys, or forensic entomologists, who use insect larvae found in corpses to figure out time of death. On January 22, appellate attorney Rytting filed a habeas corpus appeal anchored by the testimony of an entomologist who said that, based on temperature reports that said the average temperature that month was 50 degrees with highs in the mid-70’s, the earliest those maggots could have begun colonizing her body was December 18—a week after Swearingen was put in jail. (Swearingen himself, while studying the temperature data, had found a crucial error in the numbers that showed it had actually been warmer than the climatologists had initially reported.)

The CCA stayed the execution and called for a hearing to look into the matter in the trial court. At the hearing, another entomologist, James Arends, testified; he noted that there was no evidence of maggot colonization in the anal and vaginal regions, as would be expected in a body left in the wild for so long. He also pointed out that the body hadn’t been picked on by the thousands of wild pigs, crows, and vultures that live and feed in the forest. (Or, as he wrote in an affidavit, “It is very common to find near to complete skeletonization, and bones scattered over a wide area by scavengers, in cases where remains of missing persons are not recovered for significant periods of time after being left in locations such as the location in this instant case.”) Arends’s conclusion? Trotter’s body had been there no longer than a week.

Pathologist Luis Sanchez, the current Harris County medical examiner, also testified at the hearing, saying that a body in the forest 25 days would show more decomposition, color change, bloating, and skin slippage. He also explained that the autopsy showed Trotter’s internal organs had been in good enough condition to be pulled out and sectioned; however, organs begin to break down upon death. The pancreas, for example, usually liquefies completely within 24 to 48 hours. Sanchez’s conclusion: The body hadn’t been in the forest for more than 14 days.

Unbelievably, the CCA denied that appeal without even commenting on the forensic science. Rytting filed another habeas appeal last year that included affidavits from Larkin and Lloyd White, the Deputy Tarrant County Medical Examiner. Larkin said, “December 23 is the soonest that Trotter’s body could have been left in the woods, which is to say, twelve days after Mr. Swearingen was incarcerated.”

White thought the conditions of the organs made it more likely Trotter died close to January 2, 1999. He viewed photos of her heart; they revealed that “the muscle is still red and relatively fresh looking . . . the appearance of the heart is what one would expect to find upon an autopsy of a recently deceased individual.” White also wrote, “Unfortunately, the conviction in this case rests upon misleading forensic pathological testimony.”

He was referring to the words of Joye Carter. She had moved on from Harris County, but Rytting tracked her down in Marion City, Indiana, where she was the chief forensic pathologist. He got her to reread the Trotter autopsy report and other materials—such as the temperature reports. Carter realized she had made a mistake, and now she submitted her own affidavit, in which she admitted it. By her calculations, the body had been in the forest for only 14 days, not 25. Carter based her new opinion on the condition of Trotter’s bare torso as well as her internal organs. Plus, she noted how Trotter had weighed 109 pounds at a doctor’s examination on November 23; when found, she weighed 105. As Larkin wrote in his affidavit, “even if a corpse is not scavenged, a body will lose up to 90 percent of its weight in less than 25 days.”

Once again, the upshot of all of this is simple: Trotter was murdered while Swearingen was in prison. Rytting added other claims in the 2008 appeal—that detectives knew Trotter was getting threatening phone calls from another man and that there was evidence that Trotter and Swearingen had actually been dating. The CCA again asked the trial court to hold a hearing to look into these allegations—but only the latter ones, not the ones dealing with pathology or entomology. Again, the highest court in the state said nothing about the science or the doctors and their claims that Trotter was killed long after Swearingen had been locked up. “How can that not merit a new trial?” asks Rytting. “In order to merit a new trial, we have to show that, given the new evidence, no rational juror would have convicted Swearingen. There is solid forensic evidence to show this and there is nothing to counteract it on the other side except for Carter’s testimony, which she has since recanted. The truth is, if they tried Swearingen today he would walk. You put the testimony of those physicians and scientists in front of a jury, they’re going to acquit.”

Reckoning

The CCA denied those final two claims in December, and Swearingen was given his new execution date: January 27. At this point, he doesn’t have a lot of options. Rytting will petition the US Court of Appeals for the Fifth Circuit to try and get them to allow another federal appeal, though the federal standard for bringing in new evidence is tough. On January 7, Rytting, with help from the New York–based Innocence Project, filed a request for a stay of execution—as well as more DNA testing. The attorneys want to use modern-day short tandem repeat (STR) testing, unavailable in 2000, to compare the DNA profile taken from the blood found under Trotter’s fingernail and put it into the federal CODIS database of DNA profiles of 6.3 million convicted offenders. They also want to use the new technology of “touch DNA”—it can detect DNA left behind in skin cells (it recently exonerated the parents of JonBenet Ramsey)—on the panty hose around Trotter’s neck and on her clothes, under the theory that the killer left cellular evidence behind as he dragged Trotter’s body through the forest.

It would be nice if, at this late date, the CCA showed some respect for science and granted the testing. It would also be nice if the high court took a step back and showed some respect for all the medical science it has ignored in Swearingen’s case. His conviction was based, as Dr. White said, on “misleading forensic pathological evidence”—as well as flimsy circumstantial evidence. Of course, cases are tried on circumstantial evidence all the time (often, that’s all law enforcement can find), but when circumstantial evidence is as tenuous as this was, and when it butts up against scientific evidence—when one says one thing and the other says another—you would like to think that the highest court in the state would at least give the science a look.

The bottom line: Someone killed Melissa Trotter and dumped her body in the Sam Houston National Forest. But that someone was not Larry Swearingen.

Thursday, January 22, 2009

Another round of DNA testing and... THE DNA EXONERATES ROB SPRINGSTEEN AND MICHAEL SCOTT!It’s Time for Travis County toDrop the charges in the Yogurt Shop Case!Saturday, January 243 pm – Meet at D.A.'s office, 11th and Lavaca March to City Hall 3:45 - Rally at City Hall, 1st and Lavaca.Speakers Include:Jeannine Scott – Wife of defendant Michael Scott Diane Castaneda – Member of Grand Jury during original indictment Delia Perez Meyer – Sister of death row prisoner Louis Castro Perez Steven Been and KADP – Family members of death row prisoner Jeff Wood Jason Kyriakides – Member of Campaign to End the Death PenaltyThings are heating up in the Yogurt Shop case! As many of you may know, long time CEDP member Jeannine Scott is fighting for her husband Michael Scott, who was wrongfully imprisoned for murder in this case. In 1991 four young women were killed in an Austin yogurt shop. After an eight year investigation marked by several false confessions, and insufficient evidence, four young men were arrested for the murders. Despite no physical evidence, Robert Springsteen was sentenced to death and Michael Scott was sentenced to life in prison. The basis of the convictions were “confessions” from Mike and Robert, which have been shown to have been coerced Although both men refused to testify against each other, each of their so-called confessions were used in the other’s trial as evidence. It is on the basis of this misuse of the “confessions” that both men had their convictions thrown out in 2007 and Michael and Robert were granted new trials.

A few of the problems in this case include the fact that recent DNA testinghas again failed to match to any of the original four men indicted for these murders, and that during Michael Scott's interrogation a gun was held to his head in a so-called role-playing exercise

Another hearing is not scheduled until for March 4, where the judge will consider releasing Michael and Robert on bond. Meanwhile, the prosecution and defense will contain to await even further DNA testing.

Join the "Abolish the Death Penalty Project" on Amazee. com and help Texas anti-death penalty activists win the Amazee membership contest.

We could win $5,000 to use against the death penalty if we come in first, $3,000 for second and $2,000 for third.

The project with the most members by Jan 22 wins. If we win, we plan to use one-half of any prize money we win to help needy families of people on death row travel to visit their loved ones on death row.

We will use the other half of the prize money to fight against the death penalty.

Visit the project page, click on "join project" on the right hand side, then click on "register". They will send you a password. Log back in, return to the project page, click "join project" again. Then to qualify as one of the members who counts towards the contest, you have to upload a picture or avatar to represent you. It can be a picture of anything. If you do not upload some sort of picture, then you won't count towards the contest.

We were all moved by the many family members who spoke at the 9th Annual March to Stop Executions in Houston on Oct 25, so we were thinking of how we could help them. We all know that the death penalty is reserved for the poor. There are no rich people on death row.

We will use one half of any prize money we get through this contest to help family members visit their loved ones on death row. Many families have a hard time making ends meet and the extra cost of traveling long distances to visit their loved ones on death row is a great financial burden. Some of the people on death-row have young children who rarely get to visit them.

Campus Progress is hosting our first ever Southern Regional Conference at Morehouse College in Atlanta, Georgia from February 6-8, 2009! In addition to our summer national conference held each year in Washington, DC, we are adding an annual regional conference for both journalists and activists. This event couldn't come at a better time - fresh off the heels of an amazing election. This event will bring together over 200 of the brightest students and young people, including campus organizers, bloggers and journalists from all over the South, for three days of networking, training, and skills-building.

There will be both a journalism track and an activism track at the regional conference.

Click here to find out more about the Campus Progress Southern Regional Conference and apply today!

The journalism track will offer students:

Engaging speakers with media experience

Hands-on workshops to enhance reporting and writing skills

Publication critiques with professional journalists and Campus Progress staff

This conference is free and open to the public; however, you must apply to attend. The application deadline to be considered for a travel grant or housing is Sunday, January 18, 2009. If you do not need a travel grant or housing, the application deadline is Tuesday, February 3, 2009.

Click here to find out more about the Campus Progress Southern Regional Conference and apply today!

Wednesday's show on the execution in Huntsville, Texas, of Frank Moore is still scheduled. The next day, Thursday, we will cover the second execution in as many days, that of REGINALD PERKINS. Details below. Spread the word.

*** *** *** *** ***

“Shining a Spotlight on Texas’s Badge of Shame Through Live Coverage of Executions.”

*** If the execution is canceled, we’ll cancel the show. But only then. ***

MARKED FOR EXECUTION: REGINALDPERKINSTexas intends to kill Perkins, 53,by lethal injection. He was convicted in the 2000 strangling death of his64-year-old stepmother in Fort Worth.

SHOW LINEUP Host: RAY HILLRay, an ex-convict, has helmed the PRISON SHOW at KPFT for28 years and has visited death row many times.

Legal Analyst: JIMSKELTON, Esq.A legal educator, he has worked oncapital cases as defense attorney and as prosecutor.

FeaturedInterview: LINDA WHITE, Ph.D. (in Studio)

A board member of TCADP, she is active in the VictimsOutreach Program, designed to organize anti-death penalty family members ofmurder Victims. She returned to school and earned a Ph.D. after her 26-year-old daughter was raped and murdered. An author and activist for restorative justice, she is a volunteermediator with the Victim Offender program in the Texas Department of CriminalJustice. Gov. Rick Perry appointed her to represent victims’ issues on theTexas State Council for Adult Offender Supervision. She is a member ofMurder Victim Families for Reconciliation. www.mvfr.org .

Reporter,Huntsville, Outside the Death House: KELLYEPSTEIN 713-205-6906Frequent participant in the vigils outside the death house.

Monday, January 19, 2009

Associated Press is reporting that the International Court of Justice has ruled that the United States defied it's order last year, when Texas executed Jose Medellin, a Mexican national.

The U.N.'s highest court said the U.S. is still obliged to review the cases of about 50 other Mexicans on death row because they were denied access to their consulate after they were arrested, as required by an international treaty.

The court in its ruling Monday rejected Mexico's request that Washington provide guarantees that no further executions will be conducted without a reconsideration of their cases.

The U.S. argued that the Bush administration tried to carry out the court's demand for a review of all cases, but that it cannot compel individual state courts to comply.

Sunday, January 18, 2009

Below is a letter sent to us by Frank Moore's wife, Danielle. She asks that interested people copy it, make your own modifications to express your own ideas in your own words and mail it or fax your letter to the Board of Pardons and Paroles.

I am requesting by this letter that you commute Frank Mooreʼs death sentence and recommend either clemency or a new trial. He has an execution date of January 21.

Frank Mooreʼs actions in 1994 were in self defense. Testimony against Mr. Moore by key witness Ms. Wallace was inconsistent with other testimony and concealed the whereabouts and relationship to other witness. Knowles Ray, who had key information as to the lead up to Mr. Mooreʼs act of self defense was never called to testify. Also, evidence of the criminal history of the witnesses was not allowed in the trial by the trial judge in violation of his right to a fair trial. This evidence was essential to showing the victim was actually the aggressor. There have been several affidavits that support the claim that Mr. Moore was defending himself and new evidence has also been presented by investigator Huel that he says proves Mr. Moore was defending himself.

Frank Moore was abandoned by his birth mother and through sheer willpower he survived on the streets of San Antonio on his own for many years. He had struggled and kept himself in school until the 10th grade. Since 1994 Mr. Moore has become a religious man, has grown spiritually and personally and is no longer the same person he was in 1994.

Justice allows for mercy and I ask for mercy for Frank Moore. The State of Texas administers the death penalty in only 2% of murder cases and, given its finality, can never be administered fairly. The death penalty is an extreme punishment which can never be reversed, depriving the accused of the possibility of redemption. Because of these factors and because use of the death penalty has no redeeming value and no deterrent effect, I would ask that you consider it to be an extreme form of punishment in this case and recommend commutation.

Friday, January 16, 2009

The following is the letter to the editor by Stefanie Collins of Austin CEDP about Andre Thomas, the death row inmate who recently pulled out his remaining eye.

I have corresponded with Andre Thomas, the young man on Texas’ death row who recently tore out his remaining eye, for over a year. The trial record and my own personal experience with Mr. Thomas both attest to his severe mental illness.Mr. Thomas has struggled with debilitating paranoid schizophrenia since his late adolescence (as is normal with the disease). His illness was the direct cause of the terrible crime he committed.

Texas ranks near the bottom of the nation in per capita mental health care spending.The indigent, like Mr. Thomas and his victims, bear the burdens of our neglect of this critical social service.Mentally ill citizens who pose a threat to themselves and others, like Mr. Thomas did, go to health care facilities begging for help every day and are turned away because of lack of funding and capacity. Sadly, some, like Mr. Thomas, in the grips of illness go on to commit violent crimes.

It’s simple.We can provide the necessary health care for our citizens and prevent tragedies like the murders of the innocent victims of Mr. Thomas and save money.If we choose not to do so, we can wait until after the crimes take place and multiple lives have been destroyed and spend extra money to keep sick people wasting away in cages until the time comes to execute them.If we choose the latter, what kind of explanation should we offer to the families of the victims of these preventable crimes?

Thursday, January 15, 2009

Chuck Lindell of Austin-American Statesman is reporting that the Texas Court of Criminal Appeals has denied a request for new trial by Rodney Reed.

The state’s highest criminal court today refused to grant a new trial to Rodney Reed, sentenced to death a decade ago in the Bastrop County murder and sexual assault of Stacey Stites, 19.

In December, the Texas Court of Criminal Appeals issued a 100-page opinion concluding that new information raised by Reed failed to establish his innocence and could not have swayed jurors to vote for his innocence if presented at trial.

Today’s rulings denied two remaining state appeals by Reed, presumably clearing way for his case to proceed to the next level of review in the federal courts.

But one of Reed’s appellate lawyers, Bryce Benjet, said he hopes to file another state appeal containing more information about “incidents of misconduct” by Stites’ fiance, Jimmy Fennell, a former police officer serving a prison sentence for kidnapping and improper sexual activity with a woman in his custody.

“We believe this also needs to be presented to the Court of Criminal Appeals. We are preparing that, and it will be filed shortly,” Benjet said.

Reed alleges that Fennell could have killed Stites. Fennell has consistently denied the allegation.

In one appeal denied Wednesday, Reed accused prosecutors of suppressing evidence that Fennell abused and stalked an ex-girlfriend. The information, Reed argued, supports his theory that Fennell murdered Stites — a theory the Court of Criminal Appeals found unconvincing in its December opinion.

The court ruled today, however, that the information from Fennell’s ex-girlfriend should have been raised in Reed’s first appeal. Because it was not, it is ineligible to be raised at a later date, the court said in an unsigned opinion.

Reed’s second pending appeal, claiming to contain evidence of Reed’s innocence, also was denied.

“The totality of the evidence before us still supports a guilty verdict,” the court ruled.

Sunday, January 11, 2009

Scott Cobb of TMN mentions the 2003 case where the Austin City Council settled lawsuits for more than 14 million dollars in the cases of two men wrongfully convicted of murder. According to Cobb,

If Texas city councils do not start considering the broken death penalty system a matter for local governments, then more and more local taxpayers in Texas will have to foot the bill for these type of lawsuits.

In a similar case, Associated Press is reporting that the city of New Orleans might need to file for bankruptcy because it cannot afford to pay $15 million to a man who spent 18 years on death row before being exonerated.

The district attorney, Leon Cannizzaro, has asked for state authority to file for bankruptcy over the jury award to the former inmate, John Thompson, who was convicted in 1985 of killing a hotel executive, Raymond Liuzza Jr. Mr. Cannizzaro said his office would exhaust its appeals before deciding whether a Chapter 9 bankruptcy filing was necessary.

Last month, Texas Students Against the Death Penalty, Texas Moratorium Network and several members of the Austin Human Rights Commission met with aides to two Austin City Council members and asked them to help us pass a death penalty moratorium resolution. The death penalty is an issues that directly affects local governments and as the above cases display, it could take away huge amounts of money that the city needs during these troubling economic times to provide basic services.

Friday, January 09, 2009

Associated Press is reporting that Andre Thomas, a Texas death row inmate pulled out his only good eye and told officers he ate it. He had already pulled out his other eye in 2004 while awaiting trial in Sherman. He was ruled competent to stand trial. This is a disturbing case of Texas' incompetence in addressing the needs of the mentally ill and also the injustice of executing the mentally ill and retarded.

By MICHAEL GRACZYK Associated Press Writer

HOUSTON — A Texas death row inmate with a history of mental problems pulled out his only good eye, authorities said Friday.

Andre Thomas told officers he ate it.

Thomas, 25, was arrested for the fatal stabbings of his estranged wife, their young son and her 13-month-old daughter in March 2004. Their hearts also had been ripped out. He was convicted and condemned for the infant's death.

While in the Grayson County Jail in Sherman, Thomas similarly had plucked out his right eye before his trial later in 2004. A judge subsequently ruled he was competent to stand trial.

A death-row officer at the Polunsky Unit of the Texas Department of Criminal Justice found Thomas in his cell with blood on his face and had him taken to the unit infirmary.

""Thomas said he pulled out his eye and subsequently ingested it," agency spokesman Jason Clark said Friday.

Thomas was treated at East Texas Medical Center in Tyler after the Dec. 9 incident. Then he was transferred and remains at the Jester Unit, a prison psychiatric facility near Richmond southwest of Houston.

"He will finally be able to receive the mental health care that we had wanted and begged for from day 1," Bobbie Peterson-Cate, Thomas' trial attorney, told the Sherman Herald Democrat. "He is insane and mentally ill. It is exactly the same reason he pulled out the last one."

At his trial, defense lawyers also argued he suffered from alcohol and drug abuse.

Thomas does not have an execution date.

The Texas Court of Criminal Appeals in October upheld his conviction and death sentence for the death of 13-month-old Leyha Marie Hughes. Also killed March 27, 2004, were his wife, Laura Christine Boren, 20, and their son, 4-year-old Andre Lee.

Thomas, from Texoma, walked into the Sherman Police Department and told a dispatcher he had just murdered the three and had stabbed himself in the chest.

Thomas told police how he put his victims' hearts in his pocket and left their apartment, took them home, put them in a plastic bag and threw them in the trash.

Court documents described the three victims as having "large, gaping wounds to their chests."

Monday, January 05, 2009

Wednesday, January 7 at 1:00 pm Travis County Courthouse Plaza, off Lavaca between 10th and 11th.

Things are heating up in the Yogurt Shop case! As many of you may know, long time CEDP member Jeannine Scott is fighting for her husband Michael Scott, who was wrongfully imprisoned for murder in this case. Several years ago, 4 teenage girls were murdered in an Austin area yogurt shop. 8 years and dozens of false confessions later, 4 young men were indicted for the murders. With no physical evidence, Robert Springsteen was sent to death row and Michael Scott given life. Two other men were not even taken to trial. The basis of the convictions were “confessions” from Mike and Robert, which have been shown to have been coerced Although both men refused to testify against each other, each of their so-called confessions were used in the other’s trial as evidence. It is on the basis of this misuse of the “confessions” that both men had their convictions thrown out and were granted new trials. Mike’s trial is now slated to begin in February. Meanwhile, yet another round of DNA testing on crucial evidence from the crime scene has been shown not to match any of the men originally indicted.